HHJ Brian Rawlings on 15thMay 2018 handed down judgement in this case. Michael Kent QC and Peter Houghton instructed by Plexus appeared for the Claimant; Charles Feeny, instructed by Hill Dickinson appeared for the Defendant.  Mr Merritt worked for a painting and decorating company (Alick Whittle Limited) between 1975 and 1985, during which time he was exposed to asbestos and subsequently developed Mesothelioma. RSA provided employers’ liability insurance during the last 6 months of his employment, and thereby, by virtue of the Compensation Act 2006, were liable for the whole of his claim. As they were unable to locate any of the other insurers when Mr Merritt first brought his claim, RSA settled for a figure net of already paid benefits (£23,660.60 paid to CRU) of £124,255.40 plus £25,825.85 legal costs. Once the employers liability insurance tracing office was set up RSA were able to trace two other insurers that provided policies during the relevant employment period, and they sought “equitable contribution” from both. One, Aviva, provided this in line with the division of liability set out by RSA (corresponding to the percentage proportion of the total employment time) whereas the Defendant insurer refused to do so, claiming that their contribution claim was statute barred by Section 10 (1) Limitation Act 1980.

Key Issues:

HHJ Brian Rawlings set out the agreed position of the parties that: In order for Section 10 (1) Limitation Act (providing a two-year limit on claims, which was long passed in this case) to take effect, it was necessary to show that the claim RSA made against Generali was one covered by Section 1 (1) of the Civil Liability (Contribution) Act 1978. It was agreed by the parties that the answer was determined by the associated question of whether the indemnity provided by RSA to Alick Whittle Limited sounded in debt or damages.

This position is predicated on the Law Commission Report, which gave rise to the Civil Liability (Contribution) Act, which notes the following:

  1. At paragraph 28: “However, we criticised the equitable rules for being insufficiently flexible where the persons concerned were jointly liable in damages. Our point, and it won almost unanimous support, was that the 1935 Act improved on the common law not only by allowing contribution proceedings between tortfeasor’s but also by requiring the court to allow D2 to pay such contribution “as may be just and equitable having regard to that person’s responsibility for the damage”. The significance of this requirement is that where D2 is more to blame for the damage than D1 he may, under the 1935 Act, be ordered to pay more by way of contribution. Equitable rules on the other hand provide that the loss is to be shared equally between D1 and D2 even where D2 is more to blame than D1, unless the balance of responsibility is so heavily tipped against D2 that complete indemnity is justified. This would mean that, in contribution proceedings between persons jointly liable in damagesfor breach of contract, the courts power to divide the damages justly and equitably, having regard to the responsibility of each for the damage, would no longer be fettered by the existing rules.” (emphasis added)
  2. At paragraph 29: “It has been said that the existing rules can work unfairly in contribution proceedings between persons jointly liable for the same debt, for example between persons liable as partners, joint tenants or joint guarantors. The existing rules generally result in persons who are equally liable having to bear an equal share, without regard to the part they played in incurring the debt or the benefit, if any, that they derived under the agreement…. Our conclusion, so far as joint debtsare concerned, is that it is more important that the rule should be reasonably certain than that the court should have a wide discretion to redistribute the burden of each and every joint debt according to the general merits of the particular case. We accordingly make no recommendationfor changing the existing law of contribution as it applies to joint debts.” (emphasis added)

This issue was considered obiter by two Supreme Court judges, Lords Mance and Sumption in International Energy Group Limited v Zürich Insurance UK Branch[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2015] UKSC 33; who came to opposite conclusions.

Lord Mance refers to the works of Colinvaux & Mirkin’s[i]and Charles Mitchell[ii]noting that they “suggest that it turns on whether liability under an indemnity insurance is regarded as “the right to be indemnified by a payment of money” or is, under a view which the authors suggest that the cases favour, regarded as arising from breach of an undertaking to prevent the insured risk from materialising…” He goes on to state that “It suffices to say that, if insurance contract liabilities are viewed as sounding in damages, it appears somewhat surprising if the 1978 Act could operate as an alternative statutory remedy with different effect in a case of true double insurance in respect of post–commencement liabilities.”

Lord Sumption states that “A contract of indemnity gives rise to an action for unliquidated damages, arising from the failure of the indemnifier to prevent the indemnified person from suffering damage, for example in a liability policy by having to pay the third party claimant” and refers to the case of Firma C-Trade SA v Newcastle Protection and Indemnity Association[iii]as supporting this conclusion. He added that: “The class of persons “liable in respect of any damage suffered by another” [the requirement of Section 1(1) Civil Liability (Contribution) Act 1978] may include those liable in contract, and there is no reason to limit it to those who have themselves caused the damage, as opposed to those who have assumed a contractual liability in respect of it.”

It was also argued in the alternative for the Defendant that RSA should be put to proof on the reasonableness of the settlement.


HHJ Brian Rawlings made clear that he did not consider it necessary as such to choose between the positions of Lords Mance and Sumption as set out above. He considered the fact that the statements were obiter, and were expressly acknowledged by both judges not to be determinative. In light particularly of the lack of submissions and evidence on the point provided to them, he need not be bound by either position.

Instead he took the view that a number of cases referred to in Goff & Jones’ ‘The law of Unjust Enrichment’[iv]provided binding authority for the proposition that an indemnity provided by insurers sounds in damages rather than in debt. His consideration of the case law is summarised here:

In Farnley v Dominion Insurance Co Limited[v]Mr Justice Donaldson, at page 936 said “… All actions against insurers under an indemnity policy sound in unliquidated damages rather than debt (see Jabbour v Custodians of Israeli Absentee Property[1954] 1 WLR page 139, 143 seq. and the cases cited)”. HHJ Brian Rawlings noted from this both that Donaldson J confirmed that “all actions against insurers under indemnity policies sound in unliquidated damages rather than debt” and that it formed part of the ratio of his decision. He notes that the same is true of Mr Justice Donaldson in the case of Edmonds Lloyds italica & L’ Aancora Compagnia di Assicurazione e Riassicurazione S.P.A[vi]

In the Jabbour case referred to by Mr Justice Donaldson in Farnley: ‘an English insurance company agreed to indemnify the plaintiff against loss in relation to a garage owned by the plaintiff in Haifa. The garage was blown up in a riot and the plaintiff left Palestine and went to Egypt. Under emergency regulations passed in December 1948, a custodian was appointed to all property belonging to “absentees” who had gone inter alia to Egypt, requiring that such property be delivered up to the custodian. The question was whether the plaintiff or the custodian was entitled to a payment from the insurance company.’

Mr Justice Pearson said in that case that: “it is established by many decided cases that such a claim is a claim for unliquidated damages……But the word “Damages” is puzzling and seems to be used in a rather unusual sense, because the right to indemnity arises, not by reason of any wrongful act or omission on the part of insurer (who did not promise that the loss would not happen or that he would prevent it) but only under his promise to indemnify the insured in the event of a loss.… The explanation of the use of the expression “unliquidated damages” to describe a claim for an indemnity under an insurance policy may be wholly or partly afforded by the old form of pleading in assumpsit, alleging a breach by non—payment, as in Castelli’s v Boddington.” Mr Justice Pearson went on to note that the claim for an indemnity under an insurance policy cannot be the subject matter of a garnishee order but was a chose an action that could be assigned. Thereafter Pearson J proceeded upon the basis that the claim under the insurance policy was a chose in action and not a debt, in determining the case.

HHJ Brian Rawlings notes thereby that “[w]hilst Pearson J did describe the use of the word “damages”, in connection with an insurers indemnity, as being used, in an unusual sense in that the indemnity did not, in his view, involve a promise by the insurer that the loss would not happen or that the insurer would prevent it, he nonetheless proceeded upon the basis, following the authorities to which he referred, that the claim was one in damages (a chose in action) and not in debt… However, in spite of that difference, in the analysis of the insurers promise, Pearson J’s judgement confirms that, based on the authorities to which he refers, the indemnity under an insurance contract is a Damages Indemnity Liability and not a Debt Indemnity Liability.”

The Judge thereby considered himself bound by the proposition that the liability of RSA to the Alick Whittle Limited is a liability sounding in damages rather than debt. It followed that RSA’s right of contribution from the Defendant falls within the Section 1 of 1978 Act (as agreed by the parties) and that it is therefore statute barred for the lapsing of the time limit in Section 10(1) of the Limitation Act 1980.

Though he acknowledged it was not strictly necessary to decide the point, he rejected the claim that RSA would have to be put to proof as to the reasonableness of their settlement with Mr Merritt for the following reasons:

  1. He considered that the position of Lord Mance in IEG that apportioned liability not equally among insurers (as is usual) but in line with the percentage of time of exposure – owing to the unique nature of a “Fairchild” claim of this sort – was not advocating a broader ‘equitable’ approach. Rather it was a constrained expansion of the normal rules to accord with the nature of the exceptional claim.
  2. He further stated that to permit such an expansion would produce highly undesirable uncertainty, which would lead to an increase in litigation as contribution would be disputed in almost every case of this kind.


On the basis of this judgment:

  1. Claims of contribution between insurers are subject to the Civil Liability (Contribution) Act and therefore a 2 year limitation period under Section 10 of the Limitation Act 1980.
  2. Claims will be assessed on a time exposed basis equivalent to that under Section 3 of the Compensation Act 2006.

Charles Feeny comments

“The forms of action we have buried, but they still rule us from their graves.”

Maitland, the Forms of Action at Common Law (1909).

In this case, the essential question was a simple one; in a claim for contribution between insurers, should the limitation period be six years or two years from the date of judgment or settlement?  Viewed as a simple question, there would be a very simple answer. That is that there is no justification for a period of longer than two years where the claim for contribution would have been known about and could have been brought prior to the judgment or settlement and where the Defendant will in the vast preponderance of cases be legally represented and most likely a corporate or insurer Defendant. To permit a period of six years in such circumstances would be an excessive indulgence inconsistent with the reasonable objective of promoting expedition in the resolution of legal disputes.

However, in answering this question, the Judge had to delve through much historical authority and in particular consider whether the claim for contribution was in debt or for damages, a distinction which is now almost entirely historic in the law. Whilst the Law Commission did decide that debt should not be brought under the Civil Liability (Contribution) Act 1978 because there was no justification for any judicial approach to apportionment of debt, there is no reason why such proceedings for contribution in debt should not equally have been subject to a two year limitation period.

The dangers of creating or protecting enclaves in the law were emphasised by Lord Rodger in Barker v Corus.  Ironically, Lord Rodger had been one of the procreators of the best known example, the Fairchild enclave.  Creating a special rule of causation to deal with the specific problem in mesothelioma claims inevitably created anomalies and tensions in analogous and related areas of the law.  With hindsight, it might have been thought that the Court of Appeal’s approach, much derided at the time suggesting that the answer lay in statute, would have been the wiser course.  Inevitably, further litigation followed from Fairchild and by the time of their decision in Sienkiewicz v Greif, the Supreme Court were in the words of one wry, if slightly unkind ,solicitor in danger of disappearing up their own enclave.

An enclave can be defined as “a place or group that is different in character from that which surrounds it.”  In these circumstances, it is reasonable to consider that insurance law is something of an enclave. Again, rather than adopting simple and pragmatic solutions to issues arising in the current state of litigation, the courts have looked back into the history of insurance and sought to apply this in what has become an increasingly strained way.  Whilst those steeped in insurance law no doubt have some great sentimental attachment to it and would not wish to see its more precious principles abandoned, the irony is that the ultimate outcome is very little different from that which would be achieved had a much more straightforward, indeed arguably simplistic, approach been taken.  There is ultimately little difference between deciding what appears to be fair and reasonable in the current commercial context from relying upon the “broad principles of equity”.  Similar comments could be made about litigation involving commercial contracts which centre upon detailed arguments about the construction of language which was probably not read by most of those involved in the formation of the contract and certainly not considered in the degree of detail which is thought appropriate for the purposes of resolving litigation.  The digital world is creating a different commercial environment with an emphasis on speed and informality in business dealings.  If the law is to be of value in this new commercial world, then the law itself will need to adapt and to offer the kind of swift and decisive problem solving which fits with the business practices of the litigants.

Download judgment

[i]Insurance contract law (loose leaf ed), para C-0643

[ii]Law of Contribution and Reimbursement (2003), paras 4.13 and 4.43-4.44

[iii][1991] AC 1, 34 (Lord Goff of Chieveley)

[iv]9th edition paragraph 19 – 34

[v][1969] 1 Lloyds reports page 502

[vi][1986] 1 WLR 402[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]


The original article can be found here

On 22 February ,the Court of Appeal handed down judgment in the case of Bussey v Anglia Heating. The primary focus of the Claimant’s Appeal had been that the earlier decision of the Court of Appeal in Williams v The University of Birmingham was per incuriam and therefore should not have been followed by His Honour Judge Yelton at first instance.

Mr Bussey had been employed by the Defendants as a domestic plumber in the 1960s. He made occasional and limited use of asbestos products, in particular asbestos cement flue pipes and asbestos rope. His Honour Judge Yelton found at trial that Mr Bussey had been exposed to asbestos dust for up to one hour every two to three weeks. The Claimant at trial advanced a case that the exposures would have exceeded the levels in the subsequently published guidance provided by the Factories Inspectorate in TDN13 of 1969. On assessment of the expert evidence, the Judge found that the levels were below those specified in TDN13 of 1969.

In Williams v The University of Birmingham, the Court of Appeal held that because the exposure levels had not exceeded those in TDN13 of 1969 the Claimant had not proved that such exposure gave rise to a reasonably foreseeable risk of injury. In Bussey, the Claimant appeared to accept that the decision in Williams v The University of Birmingham was an insuperable bar to the Claimant succeeding if as found by the Judge the exposure levels did not exceed those in TDN13 of 1969. The argument was put on the basis that if Williams v The University of Birmingham was binding on the Judge then the Judge could only reach a different conclusion if he concluded that Williams v The University of Birmingham was reached per incuriam. The per incuriam argument was centred on the proposition that the well known cases of Maguire and Jeromson, which reference a duty to reduce asbestos exposure to the lowest level reasonably practicable, were not cited in Williams. The Claimant’s contention was that if these authorities had been cited a different result would have been reached in the Williams case.

The Court of Appeal in Bussey did not accept that Williams was wrongly decided either in law or fact. In summary, Lord Justice Jackson considered the decision could only be criticised, probably unfairly on his analysis, to the extent that it has been treated as giving rise to the use of TDN13 of 1969 as a “bright white line” in determining the level at which asbestos exposure would give rise to a reasonably foreseeable risk of injury during the currency of TDN13 of 1969.

The position Lord Justice Jackson pointed out was more nuanced and each case was to an extent fact sensitive. Lord Justice Jackson’s view was that if Jeromson and Maguire had been cited in Williams, this would only have made a difference to the extent that Lord Justice Aikens, who gave the leading judgment in Williams, would not have indicated that TDN13 of 1969 represented a bright white line (assuming Lord Justice Aikens did so which Lord Justice Jackson questioned was the case).

His Honour Judge Yelton did not accept the Claimant’s argument that Williams was decided per incuriam. He therefore found that Williams was binding which made it impossible to find for the Claimant on the facts of the Bussey case. The Court of Appeal considered that the Judge fell into error in this respect and that he was (to paraphrase) distracted from the real issue which was whether the Claimant could prove on all the available evidence that a reasonably foreseeable risk of injury had been established from the findings made in relation to Mr Bussey’s exposure in the mid to late 1960s. The case was remitted for further consideration by His Honour Judge Yelton in relation to this issue.

Lord Justice Underhill in his judgment separated out the two elements of proof of negligence which are relevant for consideration in this context. The Claimant must first prove that the Defendants knew or ought to have known of a reasonably foreseeable risk of injury and if this is proved that the Defendants failed to take reasonable steps in relation to that risk. The comments in Jeromson and Maguire against this background can reasonably be understood to relate to the second aspect, namely, what steps ought to have been taken. The Claimant’s argument involves conflating two separate aspects of proof of negligence so as to establish reasonable foreseeability of injury by a failure to take steps to avoid the injury. However ,a duty to take steps in respect of a risk can only arise once there has been a finding that the Defendants ought reasonably to have been aware of the relevant risk. As pointed out by Lord Justice Underhill, it will be very difficult for a defendant to argue once reasonable foreseeability of risk of injury from asbestos exposure is established that it was reasonable to limit the steps to be taken in respect of that exposure. The comments in Jeromson and Maguire can reasonably be understood in relation to this proposition. Indeed there is no case nor is there likely to be where a defendant would succeed in arguing that a failure to take steps in relation to exposure was acceptable when reasonable foreseeability of risk had been proved in respect of that exposure.

The Claimant’s arguments also involve conflating two separate propositions, namely, that in the 1960s the safe limit of exposure to asbestos was not known with the proposition that no safe limit existed. Whilst superficially similar, these propositions are radically different in implication. If no safe limit existed then, as now, all exposure should be avoided but analysis of the history of the development of knowledge in relation to asbestos exposure shows that low level exposures were accepted through the 1960s and into the 1970s and early 1980s. As Lord Justice Underhill points out, consideration will have to be given at the remitted hearing as to whether there were levels of exposure at which these Defendants, given the nature of their business and the information available to them, would not have appreciated that there was a reasonably foreseeable risk of injury.

Against this background, whilst the decision of the Court of Appeal in Bussey will not entitle a defendant to rely upon TDN13 as (to quote Lord Justice Jackson) a universal yard stick by which to determine foreseeability of asbestos related injury, the fact that Williams has been held to be correctly decided will nonetheless be relevant to many cases.

The remitted hearing will no doubt be informative on these issues and given the emphasis on a nuanced approach, decisions in other cases will similarly take this debate forward.

>> Click here for full Judgment

This article has been jointly written by Damon Burt and Charles Feeny.

BUSSEY v. ANGLIA HEATING – Withstanding the broadsides?

His Honour Judge Yelton on 12th May 2017 handed down judgment in this case.  The action was a fatal mesothelioma claim.  The deceased, Mr Bussey, was employed by the Defendants as a plumber carrying out predominantly domestic work in the period 1965 to 1968.  In particular, Mr Bussey worked on the installation of new boilers and was required to handle both asbestos rope and asbestos cement flue pipes.  He had to cut both the rope and flue pipes.  However, any work involving asbestos exposure was intermittent and for short periods only.

In the action, the Claimant (his widow) alleged that the exposure was foreseeably hazardous by contemporaneous standards of knowledge and that, in particular, it exceeded the levels in the guidance issued by the Factories Inspectorate in TDN13 of 1969.

The Judge considered the expert evidence , Mr Brady on behalf of the Claimant and Mr Glenn, on behalf of the Defendants ,and found that the exposure did not exceed the levels in TDN13 of 1969.  His Honour Judge Yelton did not accept that Mr Brady’s estimations of high levels of exposure for asbestos rope and for sweeping up after the completion of the works, taken from literature, were comparable to the deceased’s likely exposure.  The exposure was either to chrysotile or amosite, and under TDN13 the relevant level would be 2 fibre/ml for 4 hours.  Having rejected any exposure above the level of 4 fibre/ml and having found that the exposure was for minutes only, it followed inevitably that it could not have exceeded the levels in TDN13 of 1969.

The Claimant’s other argument was that even if the Judge found the levels did not exceed those in TDN13 of 1969, they should be found to amount to a breach of duty notwithstanding the decision in Williams v. The University of Birmingham.  The Claimant went so far as to suggest that the decision in Williams was per incuriam, which the Judge described as being “bold”.

The relevant period of exposure pre-dated the publication of TDN13, but nonetheless the Judge considered that it would be “perverse” to consider that any lower level of exposure would be relevant for the purposes of assessing reasonable foreseeability of risk.  The Judge considered himself bound by the decision in Williams which could not be distinguished, and indicated that any argument that the decision was per incuriam should be addressed to the Court of Appeal.

The decision in Williams has made it significantly more difficult for Claimants to recover damages in relation to asbestos exposures after 1965.  The game change in this respect, however, was not necessarily Williams, but rather the decision of the Supreme Court in Baker v. Quantum.  In Baker v. Quantum, a bare majority of the Supreme Court considered, not following Larner v. British Steel, that where a word in health and safety legislation referred to safety or risk of injury, the term should be construed in accordance with knowledge contemporaneous at the time of the relevant events as opposed to applying an objective approach which would bring current day knowledge into play.

In practical terms, the approach in Larner made it impossible for a Defendant to deny liability in any case to which the Asbestos Regulations 1969 applied, provided more than minimal exposure was proved , because of the definition of asbestos dust within the Regulations at Regulation 2(3):

“References in these Regulations to asbestos dust shall be taken to be references to dust consisting of or containing asbestos to such an extent as is liable to cause danger to the health of employed persons.”

Therefore, if exposure sufficient to increase the risk of mesothelioma to a material extent was proved (the causation test within Section 3 of the Compensation Act 2006) then applying Lana it would inevitably follow that there had been a breach of the Asbestos Regulations 1969.

All this was changed by Baker v. Quantum, which made it possible to argue that the exposure would not have been recognised as being foreseeably hazardous at the material time.

The decision in Williams is authority for the proposition, certainly prior to 1976, that the levels within TDN13 of 1969 are the best indication of levels which at the material time would be regarded as reasonably safe.

Not surprisingly, this decision has proved unpopular for those advising Claimants and several possible attacks upon it have been suggested, some of which were deployed in the Bussey case. The potential arguments appear to be as follows:

The levels in TDN13 of 1969 were based on epidemiology relating to the risk of asbestosis and, as shown in hindsight, to be unsustainable. This is correct, but this was the only epidemiology available at the time.  There does not appear to have been any significant criticism of the levels at the time they were introduced (other than from the asbestos industry which considered them to be too low).  They were used by the Factories Inspectorate and the Health & Safety Executive over a period of years without criticism.

The guidance was only to inspectors so as to inform when they should prosecute, and it is specifically indicated in TDN13 that ultimately the interpretation of Regulation 2(3) is a matter for the Courts.  Again correct, but there was no other guidance available and no decision of the Courts indicating that the guidance was inappropriate.

That the decision in Williams related to an occupier, not an employer.  Again correct.  However, it is difficult to see why this should make any difference.  In fact, given that TDN13 of 1969 was guidance issued in the context of employment, the converse might be more arguable.  In any event, as above, it was the only available guidance.

The decision in Williams was per incuriam, in particular because reference was not made to observations in both Jeromson and Maguire which indicated that asbestos exposure should be reduced to the lowest level practicable.  The problem with this argument, as pointed out by Mrs Justice Swift in the case of Abraham v. Ireson, is that the comments in Jeromson and Maguire were dealing with a different factual situation, that is cases where significant exposures were proved and the possibility of risk at least identified.  On analysis, there is nothing in the judgments in the Court of Appeal in these two cases which would obviate the need, in accordance with conventional principles in relation to the tort of negligence, to prove that the Defendants should have identified a reasonably foreseeable risk of injury.

His Honour Judge Yelton refused permission to appeal and it remains to be seen whether the Court of Appeal will grant permission.  Williams has been followed in a number of High Court cases now, including those cited in the judgment, that is McCarthy, Woodward and Smith and also in the case of McGregor v. Genco.


Zurich Insurance v IEG [2015] UKSC 33

Case Background

IEG is a solvent Guernsey company, a supplier of gas to the Channel Islands and a subsidiary of a global utilities, transport, energy and timber company quoted on the New York Stock Exchange. IEG is the successor in title of Guernsey Gas Light Co Ltd (“GGLCL”), which for a period of over 27 years from 13 November 1961 to 31 December 1988 employed Mr Carré and during such employment exposed him to asbestos dust.

In 2008 Mr Carré brought proceedings against IEG claiming that he had sustained mesothelioma consequent on his exposure to asbestos dust throughout his 27-year period of employment with GGLCL. IEG settled his claim on 19 December 2008 by a compensation payment consisting of £250,000 in damages and interest plus £15,300 towards Mr Carré’s costs. IEG also incurred defence costs of £13,151.60.

Thereafter IEG looked to GGLCL’s liability insurers under policies in force during the period of exposure. Two have been identified, first the Excess Insurance Co Ltd, which provided employers’ liability insurance for two years from 31 December 1978 to 30 December 1980, and, second the Midland Assurance Ltd, to whose insurance liabilities Zurich has succeeded, which provided such insurance for six years from 31 December 1982 to 31 December 1988. The present appeal thus proceeds on the basis that GGLCL had insurance for eight of the 27 years throughout which it exposed Mr Carré to asbestos dust. Guernsey did not have legislation making employers’ liability insurance compulsory until 1993, when the Employers’ Liability (Compulsory Insurance) (Guernsey) Law 1993 came into effect.

IEG notified a claim for its total loss to Zurich, which offered to meet 72/326ths of the damages and interest paid to Mr Carré and of the defence costs incurred. The proportion reflected the relationship between the six years of the Midland insurance and the 27-year period of Mr Carré’s exposure by GGLCL. It was arrived at on the basis that IEG’s liability to Mr Carré was incurred and increased from day to day throughout the 27 years, while only six years of such liability fell within the period of the Midland insurance.

At first instance Cooke J accepted Zurich’s case regarding the compensation, but not the defence costs, paid in respect of Mr Carré. He held it liable to pay £71,729.84 in full discharge of its policy liabilities, being its relevant proportion of such compensation plus 100% of the defence costs. The Court of Appeal allowed IEG’s appeal, rejected Zurich’s cross-appeal relating to defence costs, and ordered Zurich to pay £278,451.60, representing 100% of both the compensation paid and defence costs incurred by IEG.

On appeal to the Supreme Court two questions required answering: first, is Barker still good law in Guernsey; second, is an insurer who provided only part of the cover liable for the entire liability and, if so, are they entitled to recover a proportionate amount from other insurers. In addressing the first question the Supreme Court held that Barker is still good law in Guernsey. On the second the court held that Zurich was liable for the full amount but that it could claim contribution for the period not covered by their policy.

 Contributor Comments

The result of the case is easy enough to understand even if the reasoning of the court is not: Barker remains good common law (Guernsey not having an equivalent to the Compensation Act 2006) meaning liability is proportionate; had the matter been governed by English law then IEG would have been liable for the full amount but with the right to claim contribution from other insurers.

This result leads to two interesting questions and/or points: first, would the modification of the double insurance principle, as first suggested in the case of Phillips v Syndicate 992 Gunner [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2003] EWHC 1084 (Comm), be a simpler solution; and second, on the basis that Barker remains good common law are the defendant’s arguments in Heneghan v Manchester Dry Docks [2014] EWHC 4190 (QB) sound?

The first of these questions has been considered in detail by Charles Feeny in the note, ‘IEG v Zurich: Insurance Law for the Digital Age?’. By way of a brief overview, it was argued in Phillips that if indemnity was working in a way not anticipated at the time that the policies were underwritten, it would be reasonable if the concept of double insurance was modified so as to reflect this situation. Although rejected by the English courts, this approach does appear to have found favour in Australian cases, see for example AMP Workers Compensation Services (NSW) Ltd v QBE Insurance Ltd [2001] NSWCA 267, (2001) 53 NSWLR 35, Zurich Australian Insurance Ltd v GIO General Ltd [2011] NSWCA 47.

The desire for a simpler approach is compounded by he divide between the majority and minority in IEG. The root of the difference appears to be a disagreement over the so-called Fairchild enclave. Speaking on behalf of the majority, Lord Mance reasoned (at paragraph 51):

The court is faced with an unprecedented situation, arising from its own decisions affecting both tort and insurance law. A principled solution must be found, even if it involves striking new ground. The courts cannot simply step back from an issue which is of their own making, by which I do not mean to suggest that it was in any way wrong for the courts, from Fairchild onwards, to have been solicitous of the needs of both victims and insureds. But by introducing into tort and liability insurance law an entirely novel form of causation in Trigger, the courts have made it incumbent on themselves to reach a solution representing a fair balance of the interests of victims, insureds and insurers.’

In contrast Lord Sumption makes an impassioned defence of traditional principles (at paragraph 113):

No insurer can be liable in respect of other periods when he was not on risk or there was no insurance in place at all. That appears to me to be the correct answer to the problem which has arisen on this appeal. The suggestion that an insurer who was on risk for only part of the period of exposure, however brief, can be liable as if he had been on risk for the entire period, is contrary to the express terms of the contract and to the nature of annual insurance. The suggestion that some doctrine of law can be devised which imposes on an insurer in one year the risk that insurers of other years may become insolvent or that in other years the employer may fail to insure at all, is both unprincipled and unjust. The suggestion that equity can partially adjust the result of this injustice by requiring the insured to repay to the insurer part of the insurance moneys which the latter was contractually obliged to pay him, is contrary to basic principles of law.’

Whilst intellectually fascinating, the ultimate discussion can scarcely be described as readily accessible.

In relation to Heneghan, the Defendant’s arguments on apportionment appear secure, with the confirmation of the binding nature of Barker.  However, the more difficult issue on the appeal is likely to be whether the Defendant’s acceptance of the application of the Fairchild exception to cases of carcinoma of the lung was correct.  At first sight, it appears surprising, and high risk, that a Defendant would concede a Fairchild approach to carcinoma of the lung in the hope of achieving a Barker apportionment. Insurers and Defendants have been fearing for many years the extension of the Fairchild exception to cases of carcinoma of the lung and it was not to be anticipated that the point would go by way of concession.

There is real difficulty in applying the Fairchild exception, certainly without modification of any kind to the causation of carcinoma of the lung. Whilst these two conditions have the similarity of being carcinomas caused by asbestos, there are important distinctions in relation to their causation. The Fairchild exception is justified in relation to mesothelioma because of the stochastic nature of the risk created by multiple exposures to asbestos. At the centre of the rule is the perception that in these circumstances there is scientific uncertainty as to which exposure was causative and therefore the requirement of proof is diluted to one of risk rather than but for causation. However, carcinoma of the lung is a threshold condition and it can be said in an appropriate case that a Defendant’s exposure was sufficient to have actually caused the condition, that is that it would not have been on the balance of probabilities suffered in the absence of this exposure. There may be many cases where the nature of the exposure is marginal and indeed it is questionable whether there is sufficient evidence of medical causation by asbestos at all.  However, this type of difficulty of proof is not to be equated with the conundrum created by the confounding effects of successive exposures in a mesothelioma claim. If apportionment is to be applied in a lung cancer case, would it follow that where a victim had clearly excessive exposure and the Defendants had contributed, say, 80% of that exposure, they should nonetheless be subject to a 20% discount? The evidence in that case would indicate on clear probability that the Defendant’s exposure had caused the carcinoma on a conventional basis.

There will be many cases where the Claimant simply cannot prove that there was sufficient contribution to the risk of carcinoma from a relevant exposure as to make it likely causative. However, a principle of but for causation assessed on a balance of probabilities as acknowledged in Gregg v Scott [2005] UKHL 2 and indeed countless other cases, creates the prospect that a Claimant may prove a substantial contribution to risk but not sufficient to prove causation. On the other hand, a Defendant is not usually entitled to a deduction to reflect the possibility, albeit less than probability, that the condition could have arisen without reference to the Defendant. If Heneghan is followed, then it would appear that it would result in the common law doing what it has previously always refused to do, that is penalising those who can prove causation on a conventional basis to compensate those who cannot.

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McDonald v National Grid Electricity Transmission [2014] UKSC 53

Case Background

This was an appeal by the appellant Defendants against the decision of the Court of Appeal in which they held that the Defendants were liable for breach of statutory duty under Asbestos Industry Regulations 1931 regulation 2(a). The respondent Claimant cross appealed against the decision that the Defendants were not in breach of their statutory duty under the Factories Act 1937 section 47.

The Claimant died of mesothelioma shortly before the hearing in the Supreme Court. Mr McDonald was a lorry driver who, as part of his employment, would attend Battersea Power Station to collect pulverised fuel ash. Between 1954 and January 1957 he was at the power station approximately twice a month. Between January 1957 and March 1959 he was there roughly twice every three months. The power station did not contain asbestos in its raw sense but did contain asbestos based lagging. While at the power station the Claimant would visit other areas and so, it was argued, came into contact with asbestos dust generated through the lagging. In order to create the lagging paste, asbestos powder was mixed with water in large drums. At first instance the judge found that the Claimant’s exposure had been modest.

Two issues were before the Supreme Court:

  1. The applicability of regulation 2(a) of the Asbestos Industry Regulations 1931 to factories not involved in the manufacturing of asbestos products; and
  2. Whether the Defendant had breached its statutory duty under section 47 of the Factories Act 1937.

On the first ground of appeal their Lordships were divided by a majority of 3:2; Lords Kerr and Clarke, and Lady Hale held that regulation 2(a) did apply in the instant case whereas Lords Neuberger and Reed held that it did not. On the second ground, the court rejected the Claimant’s argument that the Defendants had breached their duty under section 47 by a majority of 4:1 (Lady Hale dissenting).

The majority of the court took the opinion that the 1931 Regulations were not confined to a clearly identifiable asbestos industry and extended to all industries where certain specified processes were carried out. The decision in Shell Tankers UK v Jeromson [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2001] EWCA Civ 101 (also known as the decision in Cherry Tree) was applied. Following on from this reasoning, the majority held that the term ‘mixing’, as contained in the preamble to the 1931 Regulations, was not to be given a restrictive, technical, meaning but a broad meaning which included mixing asbestos powder with water for the purpose of making a paste. In contrast Lord Reed (with whom Lord Neuberger agreed) took the opinion that, on a reading of the Regulations, combined with the historical background and subsequent legislation, the Regulations were not intended to apply to power stations and the term ‘mixing’ had a technical meaning.

When addressing the cross appeal it was accepted that to succeed under section 47 that the Claimant must show: (1) that the dust was given off in connection with a process carried on in the power station; (2) that he was a ‘person employed’ within the meaning of the section; (3) the quantity of dust given off was substantial; and (4) that he inhaled the dust given off by the relevant process. The majority held that, based upon the trial judge’s conclusions, the Claimant had not been exposed to a substantial quantity of dust. All members of the panel accepted that process should be given its ordinary meaning. In addressing a ‘person employed’, the emphasis should be on the need for protection rather than the involvement in a process and that it was sufficient that the Claimant was employed in the station rather than by the station’s operator. When addressing substantial, the court rejected the Defendant’s submission that it must be substantial at point of inhalation as opposed to at the time of giving off.

Contributor Comments

The majority decision has essentially confirmed the earlier decision of the Court of Appeal in Cherry Tree (Shell Tankers UK v Jeromson [2001] EWCA Civ 101), where Lady Hale, then Hale LJ, gave the leading judgment.

The essential issue, that is whether the Asbestos Industries Regulations could be applied to factories, not within the asbestos industry, but where processes as described in the Regulations were in fact being carried out, could plausibly be argued either way, as evidenced by this finely balanced decision.  Ultimately, the difference is one of basic approach; that is the majority’s liberal approach or the minority’s conservative approach.  The liberal approach essentially considers that there is no good reason why the Regulations should not be applied beyond the situations originally envisaged where the same risk is present and where all other facts necessary to prove a breach of the Regulations are established. Whereas the minority take the view that, in the context of penal legislation, the same should only be applied in the explicit context in which it came into force otherwise there could be inadvertent criminal liability.  This view is reinforced by the result of the cross-appeal, where it was accepted that there had been no breach of the Factories Act (which would be the legislation with which the Defendant’s predecessors would have sought to comply).  There is no evidence, or reason, to believe that they ever considered that the Asbestos Industry Regulations 1931 would apply to their premises.

The dismissal of the cross-appeal, albeit with Lady Hale dissenting, appears less debatable, although Lord Kerr left the door open to an extent, referring to the lack of evidence of visible dust.  However, to find that the mere visibility of dust would make it substantial would not be consistent with the approach under the Factories Act. Intermittent and moderate exposures were tolerated under the Act and this was, in fact, the finding at first instance in the Cherry Tree case.

In practical terms, whilst this was always an interesting issue, the decision will have little effect on future cases. The Asbestos Industry Regulations were repealed with the coming into force of the Asbestos Regulations 1969. It is likely that more and more mesothelioma claims will relate to exposures in the 1970s and 1980s, where very different issues will arise. Further, the Asbestos Industry Regulations became of lesser relevance after 1965, and the publication of the risk of mesothelioma from low level exposures.

It is clear from considering the processes within the Asbestos Industry Regulations 1931 that most will only have been carried out within asbestos factories and probably the only significant exception is that seen in this case and the Cherry Tree case; that is the mixing of asbestos in other factory premises. This case will, therefore have relevance in practical terms to claims pre-1965 where mixing in factory premises is approved.

It may be that this decision will be ultimately considered most significant in relation to changing judicial trends and the acceptance of a more conservative approach to liability in personal injury claims by the minority.  It is reasonable to consider that for most of the past decade the approach of the appellate courts, in particular in the context of disease claims, has been a liberal one usually resulting in liability either for breach or causation. Despite this, a different trend may be emerging which might encourage Defendants to approach the appellate courts with more hope.


Issues relating to asbestos exposures in the 1970s and 1980s and mesothelioma claims are discussed in the pro-vide webinar “Mesothelioma – a new generation of claims”.

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Macarthy v Marks & Spencer [2014] EWHC 3183 (QB)

Case Background

Mr Heward died of mesothelioma aged 61. Mr Heward started working for this father’s company aged 16 as a trainee draughtsman and subsequently rose to the position of Managing Director in 1981 upon his father’s death. D H Allan & Sons (the third party) undertook shop fittings and were responsible for maintenance of 13 of the defendant’s stores in North-East England. Mr Heward gave evidence in his witness statement, produced before his death, that the only asbestos he had been exposed to was during work to stores operated by Marks & Spencer.

The precise circumstances of the deceased’s exposure to asbestos was unknown but the evidence highlighted two distinct periods which were ultimately relied upon. First, was a period of approximately three weeks in the summer of 1967 whilst working as a joinder in York; and second, was between 1967 and 1990 when the deceased carried out inspections of the Defendant’s stores.

The following issues required determination:

  1. Did the Claimant contract mesothelioma;
  2. was the Claimant exposed to asbestos dust during the course of his employment at the Defendant’s stores; if so:
  3. did that exposure cause the mesothelioma;
  4. what was the extent of his asbestos exposure;
  5. was the asbestos exposure negligent and/or in breach of the Occupiers’ Liability Act 1957. In particular did the exposure give rise to a foreseeable risk of injury having regard to the state of knowledge at the time of the exposure; and
  6. if the Claimant is successful, can the defendant rely upon contribution or indemnity from the third party.

Points 1-4 were answered without any  undue difficulty. The judge accepted that asbestos was used ‘extensively in the defendant’s stores’, particularly as ceiling tiles which probably contained amosite but possibly also crocidolite.

The judge rejected the Claimant’s submission with regards to the Occupiers’ Liability Act 1957 and the presence of a warehouseman. In considering whether the exposure was negligent, the judge preferred the evidence of the Defendant’s expert (Mr Stelling) to that of the Claimant’s (Mr Glendenning) where they differed. Both experts agreed that the work in 1967 would not have exceeded 30 fibres/ml which was the applicable standard. Reaching his conclusions on the exposure, the judge did not believe that, assessed by the standards of the time, it was reasonably foreseeable that the Defendant should have appreciated that the presence of asbestos dust was likely to be injurious to the health of site workers (Williams v University of Birmingham [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2011] EWCA Civ 1242 applied).

When assessing the later exposure (during the period when the deceased was a store inspector) the Claimant put particular emphasis of HSE Guidance Note EH10 of 1976. The court rejected this submission and again concluded that the exposure was not negligent. By July 1984 the risks were firmly recognised and by May 1985 the Defendant had issued a code of practice. Both experts agreed that the level of exposure during this time would not have been in excess of guidance in force at the time.

In considering the final question (albeit briefly given the conclusion on negligence), the judge rejected the submission that the Defendant was precluded from claiming against the third party because the deceased was in breach of his duty to the company. In reaching this conclusion the judge distinguished the case of Brunder v Motornet Service and Repairs [2013] 1 WLR 2783 on the basis that in Brunder the Claimant was the sole director and controlling mind.

Contributor Comments

This case had the implausibility of an exam question in combining three significant, but distinct, issues for adjudication in the same case.

First, the Deputy High Court Judge had to consider what degree of involvement in works involving asbestos in the exposure in the 1960s might give rise to liability as a joint tortfeasor, where the Defendant was the occupier of the relevant premises and the employer under the relevant building contract.  The Court of Appeal in the Fairchild Occupiers’ Appeal had rejected liability on the basis solely of status as occupier, but held open the possibility of liability as a joint tortfeasor following Ferguson v Welsh.  This possibility would require some degree of actual involvement at the relevant works; the extent of involvement was clearly an issue for future consideration.

In this case, the Claimant sought to argue that the presence of a warehouseman who had some remit for health and safety was sufficient.  The Deputy High Court Judge considered this to be too limited a remit and, in practical terms, the responsibility of the warehouseman did not go beyond basic occupier’s liability, that is for the static or physical condition of the premises.  The degree of involvement required to create liability as a joint tortfeasor therefore remains unresolved.

Secondly, the Deputy High Court Judge had to consider when the appreciation of risk of asbestos exposure was such that should, in practical terms, be zero tolerance, which is the current day position.  Following the decision of the Court of Appeal in Williams v The University of Birmingham, those acting for the Claimants have sought to argue that zero tolerance became mandatory when the HSE Guidance Note EH10 of 1976 indicated that asbestos exposure should be reduced to the lowest level reasonably practicable. However, the Deputy High Court Judge accepted the Defendant’s and third party’s submission that this was reading too much into too little.  EH10 appears to have been a document drafted by a committee and there is a certain degree of ambiguity within it.  The expression, “so far as reasonably practicable” implies a situation in which risk has been identified and the contention that risk should always be identified when there was any suggestion of asbestos exposure is not consistent with other guidance in EH10, in particular in relation to the use of respiratory protective equipment.  The Deputy High Court Judge considered that prior to 1984, by which time the Defendants were taking action, a reasonable occupier or employer would not have considered exposure at the level experienced by the Deceased to be foreseeably hazardous.

Thirdly, the Deputy High Court Judge had to consider the relevance of the Deceased’s status as Managing Director of the third party and whether this, in effect, precluded a claim against the third party.  The findings on this point are understandably brief as the issue did not arise directly for consideration given the Claimant’s failure to prove that the exposures were foreseeably hazardous.  The Deputy High Court Judge considered the case of Brunder could be distinguished on the basis that the Claimant in Brunder was a sole Director and controlling mind, and that Brunder in any event did not concern a claim for contribution under the Civil Liability (Contribution) Act 1978.  Given that the Judge’s comments are obiter and not detailed, this issue will require consideration in future cases. It is suggested that the Judge should first consider whether the Director was in breach of duty in terms of his obligation towards the company.  If a finding of breach of duty is made, then it needs to be considered whether this breach would give rise to an obligation to indemnify the company, even if the Claimant or Deceased was not the sole Director. The usual basis of such tortious liability is joint and several  and in these circumstances, the Claimant could not recover against the company, but would have a right against his fellow Directors. In considering whether  there is a claim for contribution against the employers under the 1978 Act, it is reasonable to argue that a claim for contribution does not arise if the Claimant’s right of action against his employers is extinguished by a counterclaim for indemnity.

Charles Feeny will be speaking on the Heward case and other recent authorities on mesothelioma at DWF Solicitors, 4.30pm, 16 October in “Mesothelioma – the new generation of claims”.


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Dowdall v William Kenyon & Sons [2014] EWHC 2822 (QB)

Case Background

John Dowdall had been exposed to asbestos through a greater part of his working life. In June 1998 he was diagnosed as suffering from asbestosis and pleural plaques and later that year started legal proceedings against seven of his former employers (the first action). At the time of the first action the only symptomatic injury which the Claimant was suffering from was asbestosis. In April 2003 the Claimant obtained a judgment against the seven Defendants to that action for the sum of £26,000 and it was accepted that this was in full and final settlement against those Defendants. The judgment related to the Claimant’s actual damage (the asbestosis) and the risk of developing mesothelioma. A claim for provisional damages, relating to the risk that the Claimant would later develop a serious disease or condition, was made but not pursued.

Unfortunately, the Claimant subsequently developed mesothelioma and sought damages against the three Defendants. The court was required to reach a decision on three issues:

  1. whether the second proceedings were an abuse of process;
  2. whether the Claimant was estopped from bringing the second proceedings; and
  3. whether the second proceedings were barred under the provision of the Limitation Act 1980.

Ultimately, the court dismissed the Defendants’ submissions and concluded that the Claimant was entitled to bring a claim for the mesothelioma. In considering whether the claim was an abuse of process, the court followed the guidance laid down in Henderson v Henderson (1843) 3 Hare 100, as developed by Lord Bingham in Johnson v Gore-Wood (No.1) [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2002] AC 1 (HL), and concluded that the decision not to sue the current Defendants in the first action was honestly made and that the Claimant had not manipulated the process of the court with his intention of ‘having his cake and eating it’ (see paragraph 35). The decision not to sue the Defendants in the first action was taken on the basis that they could not be located after proper enquiries had been made.

The court rejected the argument that the 2003 judgment was intended to represent the full measure of his estimated loss. The Defendants brought an argument based upon the decisions in Jameson v Central Electricity Generating Board [2000] 1 AC 455 and Heaton v AXA Equity & Law Life Assurance Society [2002] 2 AC 329 that the order included damages for the risk of contacting mesothelioma. The court rejected this and concluded, ‘it is quite clear…that the action for damages for mesothelioma is not conceptually the same as an action for the risk of mesothelioma’ (at paragraph 45) and, on that basis, said it was clear that the Claimant had not accepted a sum which was intended to represent the full measure of his estimated loss.

The judge concluded that the Claimant did have knowledge within the meaning of s.14(1)(b) of the Limitation Act 1980 Act in June 1998 as far as the second and third Defendants were concerned and 12 months later as concerned the first Defendant. However, the court considered it appropriate to dis-apply the limitation period by virtue of section 33. The court was particularly mindful of the fact that the Claimant had a substantial claim for a very serious injury and that he had a very good prospect of establishing liability agains the Defendants.

 Contributor Comments

This case raises issues which have arisen in the past decade, but this appears to be the first occasion upon which such issues have been litigated to a conclusion.

The opportunity to pursue further Defendants in these circumstances arises because of greater openness in the insurance industry, in particular through the employer’s liability tracing office.

Whilst in the circumstances the Defendant’s arguments clearly merited serious consideration, the Deputy High Court Judge’s approach was consistent with authority.  It would be difficult to argue that the second action was an abuse in the face of a clear finding that the first action had not been settled for full value and the Claimant’s conduct in relation to that action could not be criticised.

The question of whether the settlement of the first action was at full value is made more difficult by the problem in reconciling the decisions in Jameson v Central Electricity Generating Board [2000] 1 AC 455 and Heaton v AXA Equity & Law Life Assurance Society [2002] 2 AC 329, notwithstanding the attempts of the Law Lords in the latter case to achieve such reconciliation.  However, it appears reasonable to assume that Jameson will only be followed in circumstances in which there is clear evidence that the first action was settled at full value, which in most circumstances would render the second action unnecessary.

In relation to limitation, whilst the one action rule remains the law in practice it appears to be circumvented by limitation and findings; in particular, Claimants, as here, obtaining a Section 33 discretion when proceeding for a malignant condition having previously had knowledge of a benign condition.  The courts only appear willing to entertain limitation defence in asbestos cases where the Claimant is bringing an action for the same condition in respect to which he had earlier knowledge; see Buckler v Sheffield City Council [2004] EWCA Civ 920 and Collins v Secretary of State for Business Innovation and Skills [2013] EWHC 1117 (QB).

Given the nature of the application, the Deputy High Court Judge did not have to consider what might be the most difficult issue, that is whether the Claimant should give credit in his current action for the full value of the earlier Defendant’s contribution to the risk of him developing mesothelioma; in other words he had accepted an apportioned approach by his agreement to full and final damages in the earlier action.  The nature of the cause of action in these circumstances has been something of an intellectual rollercoaster ride through FairchildBerkeley, Section 3 of the Compensation Act 2006 and the Trigger litigation.  There may be developments or even surprises in the Supreme Court decision in IEG (International Energy Group v Zurich Insurance Plc UK).  However, it appears reasonably arguable that the Claimant should give credit in these circumstances, not just for the sums received from the Defendants in respect of the risk of mesothelioma, but for the full value of those Defendants’ contribution to the risk.  Otherwise, at least, in this respect, he is having his cake and eating it.  The Claimant, in agreeing to a full and final settlement in the earlier action, was accepting against those Defendants that he should not be entitled to further damages if he, in fact, developed mesothelioma.  It is difficult to see why he should now receive these sums via another route, in particular where he has had to rely upon the court’s discretion under Section 33 of the Limitation Act.  The modified Jameson approach could result in it being accepted that the Claimant had received full value in respect of the risk created by the earlier Defendants and have to give credit for the value of this in his current action.  Such an approach would have the result of the clear injustice of the Defendants to the first action now facing contribution claims being avoided.


McGregor v Genco Ltd- identifying the issue and then the risk

Case Background

The claimant, aged 58, developed mesothelioma and at the time of trial her prognosis was poor. The claimant’s symptoms first appeared around May 2012 and the diagnosis was confirmed in August 2012. The claimant alleged that her illness was caused by exposure to dust which was the result of escalator construction work taking place alongside her work station. Upon leaving school, the claimant worked in the shoe section of Lewis’s department store in Liverpool. The claimant was employed by the British Shoe Corporation who operated a concession within the department store.

The following issues were considered and determined during the course of the trial: was the claimant exposed to asbestos dust during the course of her employment; what was the extent of her asbestos exposure; did the exposure cause her mesothelioma; and was the exposure negligent, in particular did the exposure give rise to a foreseeable risk of injury based upon the knowledge at the time of her employment.

In 1976 work was undertaken on the removal of the old and construction of new escalators within the store. The new escalators were to be in the centre of the store as opposed to the rear of the buildings. The work was undertaken during the day and customers were still allowed to enter the store. It was accepted that the new escalators were installed before the old ones and that the claimant worked approximately 10 feet from both the old and new escalators. The claimant gave evidence that she had to dust the shelves roughly three or four times a day to remove the white dust which had gathered on them. Although the claimant could not recall any plastic sheets being put down it was accepted by the court that there were such sheets to separate the work from the shop floor. The shop assistants were provided with no masks or any other form of respiratory protection.

Both experts agreed it was likely that asbestos insulating boards (AIBs) were used in the construction of the escalators removed and the new ones put in. Both agreed that (on the basis of HSE guidance in place at the time) breaking and ripping out AIBs was likely to be associated with the production of asbestos dust concentrations in the order of 5-20 fibres per millilitre in the breathing zone of the operator carrying out the work. Circular sawing was likely to be associated with levels of 20 fibres per millilitre in the breathing zone of the operator. The experts agreed that, as a rule of thumb, dust concentrations reduced to 10% of the value at source at a distance of 20-30 feet. No dust readings were taken  during the work but the court concluded it was unlikely the claimant was exposed to levels of dust in excess of the recommendations in TDN 13.

Patterson J concluded that, on the balance of probabilities, there was a barrier erected from floor to ceiling but that it was not airtight or polythene. Despite this barrier it was accepted that dust was still escaping and that it was causing shop assistants to regularly remove dust from the shelves and stock room. Therefore the claimant was subjected to asbestos exposure during her employment by the defendant at Lewis’s store. Following on from this it was accepted that the exposure to dust was causative of the claimant’s mesothelioma.

In respect of negligence the claimant submitted that the defendant was under a duty to ensure a safe place of work and that by 1976 it was known that there was a real risk of injury as a result of slight asbestos exposure. In contrast, the defendant argued that the central issue was whether it was reasonably foreseeable that the claimant might be at risk and that that is to be judged according to the knowledge of the time. Patterson J concluded that there was no negligence on behalf of the defendant. In reaching this decision the judge was influenced by the likelihood that the claimant was not exposed to levels of asbestos in breach of TDN 13 and that both experts agreed the erection of a floor to ceiling barrier would have been regarded as adequate at the time. The judge considered, and rejected, whether a further duty arose to make enquiries about the risk the work presented to employees. The protection offered by the defendant was not ‘clearly bad’ and that although the dust was a nuisance there was nothing to put the defendant on notice to make such an enquiry.

Contributor Comments

In Shell Tankers (UK) Limited v Jeromson and Dawson (2001) PIQR P.19 Lady Justice Hale (as she then was) stated at paragraph 35,

The issue in this case is not one of balancing the effectiveness, expense and inconvenience of the precautions required against the extent of the risk; the issue is whether the risk should have been identified.  With the benefit of hindsight, it is now quite clear that the exposure in these cases was sufficient to cause mesothelioma, the disease from which Mr Dawson and Mr Jeromson eventually died. The link between asbestos and mesothelioma was not established until 1960. Until then the known risk of lung disease, in particular asbestosis, and in the 1950’s, lung cancer associated with asbestosis. The issue was whether the degree of exposure in this case was such that a reasonable employer should have identified a risk.”

There are different facets to proof of a breach of duty of care. The starting point has to be that a reasonable person in the position of the defendant would have identified a risk. If this is proved then consideration has to be given as to what steps ought to have been taken to avoid or reduce that risk. A reliance by advocates on behalf of claimants on guidance to reduce asbestos exposure in particular “as far as reasonably practicable” does not necessarily assist in relation to the threshold issue of whether risk ought to have been identified. Guidance of this nature implies the risk has already been recognised.

Mrs Justice Patterson approached the case on the basis of an evaluation of all the evidence and followed the guidance of Lord Justice Aikens in Williams v University of Birmingham at paragraph 37:

I would adopt the same approach in relation to the standards by which the University is to be judged in the present case. What is not acceptable now may have been regarded as acceptable in 1974. As Simon J summarized the position in Lilian Rose Asmussen v Filtrona United Kingdom Limited (but substituting “the University” for “the employer” to apply to this case):

…the foreseeability of injury has to be tested against the standard of the well-informed [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][University] who keeps abreast of the developing knowledge and applies [its] understanding without delay, and not by the standard of omniscient hindsight. [A University] can rely upon a recognised and established practice to exonerate itself from liability in negligence for failing to take precautionary steps unless (a) the practice is clearly bad practice, or (b) in the light of developing knowledge about the risks involved in some location or operation a particular [University] acquired greater than average knowledge of the risks.”’

Following the decision of the Court of Appeal in Williams a perception has developed that cases of exposure from 1970 onwards can be assessed simply by reference to whether the exposure has shown to have exceeded the guidance in TDN 13 of 1969.  This was the argument of the defendants in Billingham v Barnsley. This argument over simplifies the position and the question in each case is one of fact as to whether there were circumstances which indicated risk.  In this context, the level of exposure by reference to published standards is highly relevant but not necessarily determinative. In the Barnsley case there were clearly, on the evidence, heavy exposures which were suggestive of risk and the fact that with hindsight the relevant individual’s exposure was not shown to exceed the guidance did not assist the defendants. The nature and level of the exposure should have been avoided even if not every exposed individual had a cumulative level of exposure which exceeded the relevant guidance.

By way of contrast with Barnsley, in the present case there was no evidence at all which indicated that anyone in a responsible position employed by the defendants should have considered risk. The dust was a nuisance but on the evidence nothing more. The expert witnesses agreed that the enclosure would have been considered adequate by contemporaneous standards and that the levels did not exceed those in TDN 13 of 1969. There was therefore nothing on the evidence which would indicate that the defendants were not themselves directly engaged in the relevant activities should have appreciated that their employees were at risk.

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Amaca Pty Ltd v Ellis [2010] HCA 5- The synergistic relationship between tobacco and asbestos

Case Background

In this note Charles Feeny and Professor Damien McElvenny of the Institute of Occupational Medicine discuss the legal and epidemiological reasoning behind synergy.

The synergistic relationship between tobacco and asbestos was considered in the Australian case of Amaca Pty Ltd v Ellis [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2010] HCA 5. The plaintiff was the executrix of her husband, Mr Cotton, who died of lung cancer. Mr Cotton had been a heavy smoker and was exposed to low levels of asbestos during his working life. The evidence at trial did not show that this was a cancer peculiarly associated with exposure to asbestos. The court was asked to determine whether it was more probable than not that the asbestos caused the cancer. Key to the plaintiff’s case was the argument that there was a synergistic relationship between tobacco smoke and asbestos.

At first instance the defendants were held liable. By a majority the appeal to the Court of Appeal of Western Australia was dismissed however, the appeal to the High Court of Australia was upheld.

Contributor Comments

Prof. McElvenny’s note (below) confirms the potent causative effect of synergy when there are significantly elevated risks, both from asbestos exposure and cigarette smoking. In these circumstances, the contribution to risk from exposure to asbestos when the synergy is taken into account is so strong that it is reasonable to infer that the victim would not have suffered from carcinoma in the absence of asbestos exposure. It may be that this perception of the effects of synergy has resulted in a belief that the increased risk of causation from synergy will result in causation by both factors, where both are known to be present. This erroneous belief appears to have been reflected in Lord Phillips’ comments in Sienkiewicz v Grief [2011] UKSC 10,

Epidemiological evidence indicated that, had the victim not been a smoker, his exposure to asbestos would have more than doubled the risk that he would get lung cancer. I do not, however, see that it was essential for the Claimant to prove this” (paragraph 76).


For reasons that I have already explained, I see no reason for the application of the “doubles the risk” test in cases where two agents have operated cumulatively and simultaneously causing the onset of a disease. In such a case the ruling in Bonnington applies” (paragraph 90).

The Supreme Court in Sienkiewicz did not have the advantage of detailed evidence on relative risk and synergy in cases of carcinoma of the lung. However, in such cases the crucial issue is likely to be whether there was sufficient evidence of exposure to asbestos to make synergy a relevant factor which, in practical terms, involves proving at least a doubling of risk from asbestos exposure.

These issues were well illustrated and subject to detailed evidence in the Australian authority of Ellis (Cotton) v Amica Property Limited [2010] HCA 5. The case involved a man with slight asbestos exposure and a heavy smoking history. There were a number of estimations of relative risk from these two sources but the one specifically quoted in the decision of the High Court of Australia was that of Professor Berry, as follows:

  1. Due to smoking alone 92%
  2. Due to asbestos alone 0.1%
  3. Due to smoking-asbestos combination 0.9%
  4. Background risk 7%

The High Court in Australia, allowing the Defendant’s appeal, rejected an argument which was essentially to the effect that synergy must implicate asbestos in the causation of asbestos related carcinoma of the lung, where asbestos exposure was known to have occurred. This was clearly set out in the dissenting judgment of Martin C.J. in the first appeal to the Court of Appeal of Western Australia ([2006] WASC 270):

When the analysis undertaken by Mr Rogers (and others) is properly understood there is, with respect to the trial judge, no unspecified fallacy in the calculations. That is because, it does not follow from the synergistic effect that the instances of cancer due to a combination of asbestos exposure and smoking, must be greater than the incidence attributable to smoking alone in a group of cancer sufferers who have been exposed to both tobacco smoke and asbestos. Rather, the proportion within the group of cancer sufferers (as opposed to a group of community members generally) who would have suffered their disease irrespective of exposure to one or other of the carcinogens depends critically upon the assumptions made with respect to the levels of exposure. If the assumption is of a high level of exposure to tobacco smoke and a low level of exposure to asbestos, the evidence of all the experts (with the possible exception of Dr Leigh to whom I will refer below), was to the effect that the largest cohort within the group of cancer sufferers will be those who would have suffered lung cancer irrespective of exposure to asbestos. Conversely, if the assumption is of a group of cancer sufferers who have a slight history of smoking and a history of heavy exposure to asbestos, the largest group will be those who would have suffered lung cancer irrespective of their exposure to tobacco smoke. In either of these assumed cases, the group who would only have contracted lung cancer because of their exposure to both carcinogens will be much smaller than the group who would have contracted lung cancer because of their exposure to the predominant carcinogen, irrespective of their minor exposure to the other carcinogen.” (Paragraph 207)

The High Court of Australia made similar comments (at paragraph 57):

It may be accepted (at least for the purposes of debate) that the synergistic or multiplicative effect suggests that in some cases the two carcinogens will have contributed to the development of an individual patient’s cancer. But the proposition which the plaintiff advanced was an absolute proposition of universal application:  smoking and asbestos must work together and they must have worked together in this case. That proposition was not established.”

This point was reinforced by the court at paragraph 60:

If the description of exposure to smoking and asbestos as “more dangerous” than exposure to one or the other was intended to reflect a quantitative comparison of risk, it is a description that did not accurately reflect the evidence given by the witnesses about the relative risks of smoking compared with the relative risks of exposure to asbestos. And if the description “more dangerous” was intended to convey no more than that those who were exposed to both smoking and asbestos were at greater risk of developing cancer than those who were exposed to only one of those carcinogens, it is necessary to bear steadily in mind that the evidence did not establish that smoking and asbestos must work together.”

The Claimant’s arguments, based upon the evidence of Dr James Leigh, ultimately try to make the risk from asbestos exposure in carcinoma of the lung equivalent to the stochastic risk known to exist in mesothelioma claims. However, there are clear distinctions between the two. In a mesothelioma claim, unless there is some argument that the mesothelioma is idiopathic, the causation issue is that it could not be proved which of any particular exposures had been causative, as any one on its own could have been the cause. The Fairchild exception was essentially created to avoid the undesirable result flowing from the logic of this argument. However, in a carcinoma of the lung case, as in Cotton (Ellis) the issue is not which exposure was causative but whether the asbestos exposure could be considered causative at all. In this context, Professor Berry’s figures indicated that, even with the synergistic effect taken into account, the chance of the victim’s carcinoma being related to asbestos was at the 1% level, whereas there was a 92% chance that it was related to cigarette smoking alone. This, therefore, is an argument that can be disposed of on a conventional basis.

Clearly, within a cohort of 100 persons with similar histories and similar diagnosis, there will be one who in fact suffered carcinoma of the lung as a result of asbestos exposure, but as Patrick Walsh of Pannone pointed out, in the discussion in the webinar (Causation in asbestos: Minimal or material? Risk or probability), there is no way in the absence of any medical or pathological evidence that it can be established whether a particular victim was this one person, as opposed to being one of the 92 who suffered from carcinoma of the lung as a result of their cigarette smoking habit.

Synergy (asbestos and tobacco smoking and the risk of lung cancer)- Damien McElvenny

Using data from Hammond et al (Hammond EC, Selikoff IJ, Seidman H (1979). Asbestos exposure, cigarette smoking and death rates. Ann N Y Acad Sci 1979; 330: 473-490), the relative risk (this can be thought of as approximately the ratio of the probability of getting the disease if exposed divided by the probability of getting the disease if unexposed) of lung cancer from tobacco smoking versus not tobacco smoking was approximately 10, and in non-smokers, the relative risk from exposure to asbestos was approximately 5.  These risks may be higher or lower in other working populations depending on the level of asbestos exposure and the level of tobacco smoking, and so are used for illustrative purposes only.  These relative risks can be represented by the following table, where the relative risk from asbestos 5 (in non-smokers) is the value in bold:

Relative risk Relative risk of tobacco smoking
Smoker Non-Smoker
Relative risk of asbestos   Exposed 5.0
Unexposed 10.0 1.0

If the effects on lung cancer from tobacco smoking and asbestos exposure were completely independent of each other (i.e. didn’t interact in any way), then the excess relative risks (the amount of relative risk above 1.0) would be additive and the table of relative risks would be as shown below (as before the relative risks for asbestos are in bold):

Relative risk Relative risk of tobacco smoking
Smoker Non-Smoker
Relative risk of asbestos   Exposed 14.0 5.0
Unexposed 10.0 1.0

In this (non-interaction) scenario, for every lung cancer case in a non-smoker unexposed to asbestos, there will be an additional 13 cases of lung cancer, 9 of which are due to tobacco smoking and 4 of which are due to asbestos.  However, because the cases in practice will be clinically indistinguishable from each other, we cannot say which cases are due to which exposure, nor say which cases are the ones that would have happened anyway.  If we knew a case didn’t have either exposure (i.e. didn’t smoke and weren’t exposed to asbestos), they are most likely to be one of the background cases (i.e. a case caused by some other lung carcinogen).  If they had exposure to asbestos in the absence of tobacco smoking, then asbestos would be the most likely cause, and ditto for tobacco smoking in the absence of asbestos exposure.  Where it is a little more difficult, is in the situation where a lung cancer case has had both exposures.  Here, we would have to say on the balance of probabilities that the case is most likely due to tobacco smoking (9 cases due to tobacco smoking versus 4 due to asbestos exposure).  (This could be further refined if levels of exposure were taken into account).

If the effects are synergistic in a fully multiplicative way, which is believed to be approximately the actual situation, then we have the following table (as before the relative risks for asbestos are in bold):

Relative risk Relative risk of tobacco smoking
Smoker Non-Smoker
Relative risk of asbestos    Exposed 50.0 5.0
Unexposed 10.0 1.0

In this scenario, the individual effects of asbestos and tobacco smoking in the absence of each other (or both) are the same, but now we have 49 excess cases for every case unexposed to either causal agent, 36 (49-13) of which are due to the synergy or multiplicative effect of asbestos and tobacco smoke.  Under the synergy model, the majority of the lung cancer cases (36 out of 50) are due to the synergy.  Unlike for the additive model, for those cases with both exposures, we’re not able to reach a judgment on whether asbestos or tobacco smoking is the most likely cause.  Here (because they are clinically indistinguishable from each other), we can only say that they are jointly responsible (the “but for” test), since the removal of either cause, would prevent these 36 excess cases due to the synergistic effect from occurring.

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Breach of duty in historic hearing loss cases – adverse inferences

Case Background

Keefe -v- Isle of Man Steam Packet Company Limited [2010] EWCA Civ 683

Shawe-Lincoln -v- Dr. Arul Chezhayan Neelakandan [2012] EWHC 1150 (QB)

Heavey -v- TMD Friction Limited, Wakefield County Court, 25th October 2012, HHJ Cockcroft, Lawtel report 14 November 2013.

Contributor Comments

All of these cases concern the difficulties faced by Claimants in proving breach of duty due to excessive noise, often from many years ago, and by Defendants in defending the same issue.

In Keefethe deceased (the claim was brought by his widow) worked in the galley of a sea going ferry between Heysham in Lancashire and the Isle of Man from 1978 and June 1998. The deceased (ante mortem) contended that he was exposed to noise from vehicles being driven onto and off the Ro-Ro ferry on which he worked and from the galley. Two of the deceased’s shipmates corroborated the deceased’s account that it was noisy in the galley. Specifically, one witness said that it was necessary to shout or augment oral communication with hand signals.

The trial judge dismissed the claim because the Claimant had not proved that the deceased was exposed to daily average noise levels in excess of the relevant daily limits (90dB(A) LEp,d before 1st January 1990, 85dB(A) LEp,d thereafter).  Specifically, he recorded that the lay evidence did not show that the daily average noise levels exceeded those limits and that the disclosure from the Defendant did not assist him in reaching such a conclusion as the Defendant had not recorded the noise levels in the galley.

However, the trial judge’s decision was reversed on appeal. In particular, the Court of Appeal (Longmore LJ) held that:

  1. the Defendant was subject to a duty to measure noise levels where the deceased’s exposure was likely to exceed the relevant limits (based on the Code of Practice for the Reduction of the Exposure of Employed Persons to Noise 1972);
  2. the Defendant’s failure to record the noise levels was in breach of that duty, especially where there was ‘colloquial’ evidence (that is, lay evidence) that suggested that such levels may have been exceeded (paragraph 18);
  3. accordingly, “any difficulty of proof for the Claimant has been caused by the Defendant’s breach of duty in failing to take any measurements” (paragraph 18);
  4. “If it is a defendant’s duty to measure noise levels in places where his employees work and he does not do so, it hardly lies in his mouth to assert that the noise levels were not, in fact, excessive.”  His Lordship relied on the principle that where a party can adduce evidence to rebut a fact and fails to do so, an adverse finding can be made by the court (see British Railways Board -v- Herrington [1972] AC 877); and
  5. “In such circumstances the court should judge a claimant’s evidence benevolently and the defendant’s evidence critically.” (paragraph 19)

However, the ambit of this case appears to be misunderstood (or, at least, wrongly cited). To imply that where a Defendant does not have records regarding the noise levels in question, then the court should view the Defendant’s evidence critically and that of the Claimant benevolently. This misapplication often arises in historic cases, in which the Defendant’s inability to adduce evidence regarding noise levels has been caused by long delay since the cause of action accrued or other factors such as the destruction of historic records.

This misunderstanding ignores the important qualification set out in the numbered list above at 1 and 2. Specifically, the court may draw an adverse inference from the Defendant’s failure to record noise levels if  that failure can be proven to be in breach of its duty of care. Not in circumstances in which records that are likely to have existed have been destroyed or lost due to the passage of time, lost through the dissolution of the company or for some other ‘innocent’ reason.

In clinical negligence, an attempt was made to misapply Keefe to urge a court to draw an adverse inference (and effectively to reverse the burden of proof) in Shawe-Lincoln v Dr. Arul Chezhayan Neelakandan [2012] EWHC 1150 (QB) in which the Claimant sought to utilise the Defendant’s failure to take a full note to reverse the burden of proof regarding delay in diagnosis and treatment (paragraphs 79 to 82). Claimant’s Counsel correctly conceded that there was very little evidence to support his case on deterioration. The trial judge, Mr Justice Lloyd Jones, held that even adopting a benevolent approach to the evidence relied on by the Claimant, that evidence did not discharge the burden of proof. Simply put, the Defendant’s admitted negligence in taking a full note did not reverse the burden of proof, nor enable the court to make findings that were not grounded in the evidence relied upon. (It is of note that the judge held that the principle in Keefe was not limited to occupational disease cases.)

In Heavey -v- TMD Friction Limited, the Claimant failed to adduce any engineering evidence at trial and sought to rely upon the (misapplication of the) principle in Keefe to argue that, in the absence of noise measurement records, it was probably noisy. In fact, the learned judge correctly held that in order to bring the case within the ambit of Keefe (as set out above in the numbered list), the Claimant would need to show that the noise levels to which he was exposed were likely to have exceeded 90dB(A) LEp,d at the relevant times. Specifically, His Honour Judge Cockcroft said (at paragraph 24):

in Keefe, it is apparent from the transcript that there was some expert evidence that, based upon the anecdotal evidence given about sign language and hand signals for communication at a distance of 10 feet or so, an inference could be drawn that noise levels were at or about 90 decibels, and that such levels were maintained for eight hours or more in a 16 hour shift. Here, there is no such evidence. I find it quite impossible, in the circumstances, to make any safe and proper inferences about decibel levels reached at the claimant’s workplace, or the length of time the highest level of noise was maintained, with obvious implications when I come to consider liability.

In extremis, if His Honour Judge Cockcroft was wrong to limit the application of Keefe and it was not necessary for the Claimant to discharge the burden of proof, the principle would have its widest application in quiet environments where the Defendant did not measure noise levels because it simply was not noisy (thus the duty to measure was not ‘triggered’ by paragraph 5.1 of the Code of Practice or Regulation 4 (1) of the Noise at Work Regulations 1989).


The burden remains on the Claimant to prove, in rudimentary terms but nevertheless on the balance of probabilities, that he was exposed to noise levels that were in breach of duty before Keefe applies (to bring the case within the ambit of the principle). Keefe only then permits a court to make an adverse finding where proving to what extent the noise levels exceed the relevant limits (such as where specialist machinery or circumstances exist) in the absence of noise surveys or engineering evidence (which would be based on such measurements anyway). It does not reverse the burden of proof nor does it relieve the Claimant of the duty of discharging his evidential burden. The cases to which Keefe assists the Claimant are likely to be limited.

St Johns Buildings

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